The Superior Court of Justice of Catalonia (TSJC) has declared inadmissible the dismissal of an employee who was caught watching pornography in the workplace, concluding that this is not sufficient reason to terminate the employment relationship if a decrease in the performance.
In its ruling, the Catalan high court confirms the resolution of a social court in Granollers (Barcelona) that in June 2022 ruled in favor of the employee, who had been fired in 2020 after a colleague of his reported him to the company. for masturbating at his workplace while watching pornographic pages on the Internet.
The company dismissed the worker – represented by lawyer José María Esteban from SAMMOS Legal – for breach of contractual good faith and decrease in performance, after, through viewing the security cameras, it was concluded that the employee was masturbating. during his work day while viewing pornographic material on the Internet.
The ruling does not consider it sufficiently proven that the worker masturbated during work hours, but it does assume that he watched pornography at his workplace, an area isolated from the rest of the offices.
However, the TSJC rules out that the viewing of pornographic material, by itself, "constitutes a serious and culpable violation of contractual good faith" that entitles the worker to be fired.
For the court, it could be understood that the employee failed to comply with his "elementary duty to attend exclusively to the provision of his services during the work day, without using this time for purposes other than his professional obligations," but this violation "does not meet the note of seriousness that authorizes the employer to exercise disciplinary power".
The ruling adds that, to determine the seriousness of the plaintiff's conduct, it is necessary to analyze the specific circumstances of the action, where it occurred and the means and instruments that the worker used.
In this case, the TSJC reasons that the worker did not "exhibit" his practice to other colleagues and that it is not proven that he accessed pornographic material with the company computer, so "the employee's violation is not accompanied by other offenses determinants of its greater severity".
The ruling adds that the "verified frequency" with which the worker viewed pornography is not clear, since it has not been possible to prove the "assiduity" referred to in the dismissal letter.
